SAKTHEVEL PRABAKAR v. SECRETARY FOR SECURITY

CACV 211/2002

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CIVIL APPEAL NO. 211 OF 2002

(ON APPEAL FROM HCAL 2078/2000)

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J U D G M E N T

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Hon Rogers VP:

1. This is an application for leave to appeal to the Court of Final Appeal from a decision of this court given on 27 November last year. The short fact of the matter is that as soon as the decision of the Court of Appeal was given, the applicant in the case was permitted to go to Canada and permitted entry in Canada and has been accepted there as a refugee. There is now, as far as this court can see, and nothing has been drawn to our attention otherwise, no likelihood of him returning to Hong Kong, at least in the foreseeable future.

2. In that situation, any appeal to the Court of Final Appeal is likely to be academic in this sense: that it will have no practical effect and certainly no effect on the applicant whatever. I see no reason in these circumstances why the applicant should be put to the expense of being a respondent to an appeal. In any event, the applicant was legally aided and I see no reason why the Legal Aid Fund should be put to the expense of financing a case in the Court of Final Appeal on a matter which is academic.

3. Our attention has been drawn to the decision of R v The Secretary of State for the Home Department, ex parte Salem [1999] AC 450. That makes clear that academic appeals should be discouraged and should only be allowed in specific circumstances. In my view, if an appeal can be classified as academic, the grant of leave to appeal to the Court of Final Appeal should be a decision of the Court of Final Appeal itself and not of this court. It is none of this court's business to foist upon the Court of Final Appeal appeals which are academic. Even on the submissions which have been put to us, I cannot see from what Mr Marshall has said, that there is any long line of cases which is likely to be affected by this decision.

4. Turning to the questions themselves, most of the questions which have been framed are specific to the facts of this case. A number of the questions contain sentences such as "The Court of Appeal also erred in attaching any importance to the hypothetical case that there could be claims where there would be little or no overlap" and such sentences as "The Court of Appeal erred in finding a supervisory error by the Secretary of State in what was a decision in principle to deport". These sentences could hardly ever, as far as I can see, find their way into what would be a properly framed question of law for consideration by the Court of Final Appeal. The second question, and I put this to Mr Marshall, seems to me to be totally incomprehensible. The only question which might arise would be Question 1, but even on that I would not give leave to go to the Court of Final Appeal.

5. In my view, there is no doubt about the matter. This court should dismiss this application for leave to appeal to the Court of Final Appeal.

Hon Le Pichon JA:

6. I agree.

Hon Yuen JA:

7. I agree.